OPINION: Democracy and the rule of law in Armenia — what President Macron should discuss with Prime Minister Pashinian

French President Emmanuel Macron with Armenian Prime Minister Nikol Pashinian at their previous meeting on the sidelines of the Nato summit in July.

By Michael Burrell of the European Centre for Public AffairsSeptember 13, 2018

Around the world, from Myanmar to many countries in Africa and Latin America, questions are being raised about the role that the courts play in emerging democracies.

For many observers, the independence of the courts from political direction is seen as a key litmus test of whether a society is truly free. The ability of judges to decide in accordance with the law whether the actions of a state threaten the rights of individuals provides an important test of any state’s capacity to operate within the constraints of the rule of law and in a way that safeguards internationally acknowledged human rights.

Within Europe it is often assumed that such issues only arise in far-away continents, but today it increasingly seems that this may be too complacent a view.

Armenia provides a good example. Here is a European country strategically placed on the borders of Asia, locked in conflict with its neighbour, Azerbaijan, dependent in large measure on its powerful neighbour, Russia, and still struggling to find a settled path to a prosperous, peaceful and democratic future.

Earlier this year people power on the streets of the Armenian capital, Yerevan, played an important part in the departure from power of Serzh Sargsyan and his replacement by his long-time opponent, Nikol Pashinian, a veteran of street protests in 2008 over the legitimacy of Sargsyan’s election as president. This summer’s transfer of power raised hopes that the country could be set on a new and more hopeful path.

Now those hopes risk being dashed, as Pashinian moves to take revenge and settle old scores with Sargsyan’s predecessor, Robert Kocharyan, who was president of Armenia from 1998 to 2008.

Sometimes it can be hard to prove that a country’s political leaders are ordering arrests and prosecutions, but in Armenia’s case we now have the evidence in the form of sensationally leaked tape of a telephone conversation between Sasun Khachatryan, Pashinian’s appointee as head of Armenia’s Special Investigative Service, and National Security Service chief, Artur Vanetsyan. The nine-minute tape refers directly to the Kocharyan case and to the arrest of Yuri Khachaturov, who was deputy defence minister in 2008. Listen to the tape and you will hear Vanetsyan refer to “The prime minister’s order to cage Khachaturov”.

In February of 2008 protesters against Sargsyan’s election occupied a square in Yerevan. There were recorded cases of looting and attacks on policemen. The protesters began throwing stones and there were claims of gunshots fired at security forces. The authorities ordered the police to break up the demonstration and, as they did so, ten people (eight civilians and two police officers) were killed. Kocharyan, the outgoing president, declared martial law and said subsequently that his actions prevented the illegal seizing of power by the opposition.

Shortly after coming to power this year Pashinian ordered Armenia’s Special Investigative Service to investigate the use of lethal force in the 2008 unrest. On 26 July Kocharyan was arrested and accused of “overthrowing the constitutional order” of Armenia, specifically by breaching articles of the country’s constitution which stipulate the military’s neutrality. The charges are punishable by up to 15 years in prison.

The day after his arrest Kocharyan was placed in pre-trial detention for two months. His lawyers appealed and in mid-August the Armenian Court of Appeal freed Kocharyan from prison, citing a provision in the constitution under which former presidents have immunity from prosecution. It was a brave decision that appears to have unnerved the authorities, who announced that they would file an appeal against it to Armenia’s Court of Cassation.

At the beginning of this month Kocharyan’s lawyer indicated that Kocharyan, 64, intended to travel to Germany for an annual medical examination. In response the Armenian authorities issued an order barring Kocharyan from leaving the country. Given the immunity that the Court of Appeal had granted to Kocharyan, his lawyer’s response was that “any action aimed at criminal prosecution — and applying a measure of restraint is also an act of prosecution — is not legal”.

Concerns about the treatment of Kocharyan and other critics of the government have been echoed by international NGOs.

Laurence Broers, an Associate Fellow at Chatham House, has said that it is questionable whether Armenia’s judiciary will be able to offer Kocharyan a “credible legal process”, adding: “The problem is that Armenia’s justice system has hardly had time to reform, and the danger is that any failure to uphold the highest standards could make the process look more like ‘victor’s justice’ than a society coming to terms with its past”.

Human Rights Watch are also worried, and particularly critical of the “excessive use of pre-trial detention in politically sensitive trials”. They said that prosecutors and judges would also “need to ensure that charges are based on sound evidence and are not excessive, intended to silence others, or to settle scores with people whose messages the authorities don’t agree with”. Their conclusion: “Resolving the issue of politically motivated prosecutions will be challenging, but very important to restore faith in Armenia’s criminal justice”.

It is good to know that events in Armenia are being closely followed elsewhere in Europe. French President Emmanuel Macron will have an opportunity to raise these issues directly when he meets Pashinian shortly. The hope must be that the authorities in Yerevan come to understand that cases like Kocharyan’s must be handled in a way that is consistent with European values. That is vital if the new prime minister wishes to be seen as a reliable, trustworthy and democratic partner, rather than a retrograde, authoritarian post-Soviet head of government.

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